Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis Honorable
Michael K. Mullen.
Ford ("Movant") appeals from the motion court's
judgment denying his post-conviction relief motion pursuant
to Rule 29.15 without an evidentiary hearing. Following a
jury trial, Movant was convicted of murder in the first
degree, in violation of Section 565.020 (RSMo. 2000), and
armed criminal action, in violation of Section 571.015 (RSMo.
2000). Movant was sentenced to life without the possibility
of probation or parole and a second concurrent term of life.
We reverse and remand.
his conviction of first-degree murder and armed criminal
action, Movant filed a pro se motion for
post-conviction relief on May 11, 2015. Movant's
appointed counsel ("Counsel") then made an entry of
appearance on May 20, 2015, and requested an additional 30
days to file the amended motion, which was granted. On August
18, 2015, Counsel filed Movant's amended motion 90 days
after his entry of appearance. However, there is no mention
in the record regarding the date of Counsel's
Movant's sole point on appeal, he argues that the motion
court clearly erred in denying his post-conviction motion
without an evidentiary hearing because Movant properly
alleged facts demonstrating that Movant was entitled to
relief in that he was denied his rights to due process of
law, effective assistance of counsel, and a fair trial, in
violation of his constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, §§ 10, 18(a), and 19 of
the Missouri Constitution when his trial counsel was
ineffective for failing to object to the admission of
Exhibits 18, 19, and 20 and Emily Blackburn's
("Blackburn") testimony inferring cellular
telephone records of a codefendant's cellular telephone
identified movant's specific location. Movant further
argues that this information is a subject for an expert
witness, the prosecution did not qualify Blackburn as an
expert, and Movant was prejudiced by Counsel's failure to
object because there was a reasonable probability that the
outcome of the trial would have been different if
Blackburn's testimony was excluded. However, we cannot
review the merits of this appeal because the record does not
include reference to Counsel's date of appointment, which
is necessary for determining the timeliness of Movant's
Abandonment by Counsel
29.15(g) outlines the procedural requirements of an amended
motion following a directed appeal:
If an appeal of the judgment sought to be vacated, set aside,
or corrected is taken, the amended motion shall be filed
within 60 days of the earlier of the date both the mandate of
the appellate court is issued and: (1) Counsel is appointed
or (2) An entry of appearance is filed by any counsel that is
not appointed but enters an appearance on behalf of movant.
The court may extend the time for filing the amended motion
for one additional period not to exceed 30 days.
amended motion is filed beyond this deadline by counsel
appointed to an indigent movant, "the motion court has a
duty to undertake an 'independent inquiry . . .' to
determine if abandonment occurred." Moore v.
State, 458 S.W.3d 822, 824 (Mo. Banc 2015). The burden
then shifts to the movant to demonstrate that the untimely
filed amended motion was the result of appointed
counsel's failure to comply with Rule 29.15, rather than
the movant's own negligence or intentional conduct.
Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc
2014). If the motion court finds the untimely amended motion
was merely caused by the inattention of Movant's
abandoned counsel, the late filing must be permitted.
Rule 29.15(g), the 60-day filing period begins with the
earlier of two procedural events: (1) appointment of counsel
or (2) entry of appearance by any counsel on behalf of the
movant. Here, though the record notes Counsel's entry of
appearance (and granted request for a 30-day filing
extension) on May 20, 2015, and the filing of Movant's
amended motion 90 days later on August 18, 2015, there is no
reference to Counsel's date of appointment in the record.
Because the timeliness of the amended motion is dependent on
the date Counsel was appointed, an independent inquiry would
be necessary if Counsel was appointed before the May 20, 2015
entry of appearance as the filing would have occurred more
than 90 days from the appointment of counsel.
motion court's Conclusions of Law and Order address the
timeliness of the amended motion in stating that
"counsel entered his appearance on behalf of movant on
May 20, 2015, he was granted an extension of time and he
timely filed an amended motion on August 18, 2015." This
conclusion, however, is not completely reflected by the
record because there is no reference or attachment of an
order of appointment in the record.
record on appeal is inadequate through no fault of the
parties, the proper remedy is to reverse and remand the case
to the trial court. Steinberg v. Steinberg, 430
S.W.3d 321, 324 (Mo. App. E.D. 2014) (citing Goodman v.
Goodman, 165 S.W.3d 499, 501 (Mo. App. E.D. 2005)).
Here, in the absence of an appointment order, there is an
incomplete record because there is no indication of the date
of Counsel's appointment for purposes of determining the
timeliness of ...